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Cap Metro approaches union complaint with caution

Tuesday, October 28, 2003 by

Wyatt, others complain about performance-based pay, OSHA lawsuit

Union members raised enough red flags at yesterday’s Capital Metro board meeting to sway board members to intercede in unresolved conflicts between Amalgamated Transit Union Local 1091 and StarTran.

The action is more substantial than it might sound. Transit agency employees are given the right of collective bargaining under federal law; however, collective bargaining is illegal for public employees under Texas law. The use of StarTran legally resolves that conflict. Capital Metro signs a contract with StarTran to provide operational services. StarTran hires the union members.

So it was no surprise yesterday that Board Member Fred Harless raised objections as soon as union president Jay Wyatt stepped to the microphone. As Harless pointed out, members of Local 1091 were subcontractors who reported to StarTran and not Capital Metro.

“There is a grievance procedure,” Harless told Wyatt. “There are steps to be taken.”

That was not going to stop Wyatt, who was accompanied by a national union representative, his union lawyer and Texas AFL-CIO President Emmitt Shepherd. Board members gave Wyatt 30 minutes to present his case, which included a series of speakers who expressed concerns that included a new “pay for provision” amendment to the existing three-year-old contract—over the objections of members of Local 1091.

“The only thing that we ask is that Cap Metro and StarTran honor our negotiated agreements. Is that asking too much?” Wyatt queried. “One of the biggest problems is that both want to save money, and that’s been an attack on our collective bargaining.”

Union members listed a long list of unresolved issues: pay for performance in direct violation of the existing contract; the end of maintenance shift differentials; problems with vacation and holiday pay for sick employees; denying the union the right to investigate; and creating a hostile environment for union members.

Attorney Glenda Pittman, who represents Local 1091, told the board that federal labor law is clear. StarTran cannot change the terms of the contract while it’s in force, and that includes both what is written in the contract and what are considered unwritten practices.

Union official Bill Kweter told board members that StarTran punishes employees for reporting injuries, labeling some preventable and putting the matter in the same category as vehicular accidents. An employee with three accidents in 12 months is fired, leading most employees to hesitate when reporting injuries or accidents, Kweter said.

Kweter also raised questions about why StarTran refused to file accident reports with OSHA, leading to a $500 fine. Kweter’s own tally, based on document requests, put the court fight with outside counsel at a cost between $120,000 and $170,000. Those were sales tax dollars that were being used to fight a $500 fine through the court system, Kweter said.

“There’s a saying in business, ‘Nothing goes mismanaged for long,’” Kweter said. “Obviously this saying does not apply to Capital Metro, whether it’s Karen Rae or Fred Gilliam or the next General Manager. Capital Metro continues to operate without a social conscience. It makes one wonder who is really running the show.”

Gilliam’s argument is that union members are employees of StarTran. Union members themselves, however, clearly link StarTran and Capital Metro. They point out that while StarTran may be a separate company, it shares many of Capital Metro’s resources, including Capital Metro’s Human Resource Department and legal counsel.

After the meeting, Wyatt said Capital Metro chooses to disassociate itself from StarTran in such situations as labor disputes. But when negotiating pensions and benefits, Local 1091 sits down with Capital Metro board members, not StarTran leadership. At the end of his presentation, Wyatt asked the board to appoint a subcommittee to get to the heart of the union’s concerns.

Gilliam told board members it would be inappropriate to comment on labor issues between StarTran and its employees. But Gilliam also said that he had seen some of the documentation on the pay for performance issue and was comfortable with StarTran’s decision. Wyatt was asked to produce tapes to bolster his arguments. To date, Wyatt has not provided those tapes to Capital Metro, Gilliam said.

To get any further into the argument between StarTran and its employees would give the appearance of Capital Metro being a co-employer for Local 1091, Gilliam said. Capital Metro must be careful to meet state and federal laws concerning collective bargaining. Gilliam added that legal counsel had briefed him on the OSHA situation, and the scenario presented to him had been far different than Kweter’s position. He did not elaborate.

“If they aren’t satisfied, I don’t know where they go beyond that,” Gilliam said.

That might have been the end of it if Board Member Danny Thomas hadn’t interjected that he was troubled by the employees’ claims. Capital Metro should have some authority, Thomas said, given that StarTran is the transit agency’s contractor. That the room was filled with mechanics and bus drivers by itself ought to indicate the presence of a potential problem, he said.

“There are some complaints here that concern me,” Thomas said. “I do know our President/CEO can take this message back to StarTran that we’re concerned.”

Harless countered the board shouldn’t be intimidated just because the union can fill the meeting room with a crowd. But he also saw Thomas’s point. “I’m very much in alliance with Council Member Thomas,” Harless said. “Obviously we have some problems here, but I don’t think this board can be a mediator. It’s against the law, for one thing.”

Board Member David Harper agreed with Thomas, saying he’d like to hear from Gilliam, too. That appeared to turn the tide. The board agreed, without a vote, to get a report on the complaints from Gilliam. Cap Metro's attorney, Sallie Crosby, said that Gilliam would talk to StarTran but those conversations should be “fully compliant with the law.”

BOA OKs chameleon-like single-family home

Neighbors say 6-bedroom house will be a dormitory

Earlier this year, the owners of property at 3207 Hampton won administrative approval on plans to build a duplex with six bedrooms on each side. Hyde Park neighbors appealed the decision, asking the Board of Adjustment to review the decision of the Watershed Protection and Development Review Department. The neighborhood was successful in its appeal, defining the duplexes as “group residential use” beyond the specifics allowed under SF-3.

Neighbors objected to the plans, clearly intended for student housing. The duplex, with its traffic, would have been only a block away from Lee Elementary.

One might assume the Board of Adjustment would once again side with the neighbors when the owners of 3207 Hampton filed a new application for two-family residential use on the property. But that was not the case last week. Plans would put a six-bedroom home on the property with a two-bedroom detached garage apartment behind the house.

Ara Merjanian and David Mattox argued on behalf of the neighborhood, raising the same objections. This time, however, they were deemed making duplex arguments in a single-family residence situation. As two single-family dwellings, each residence could be home to up to six unrelated residents, for a total of 12 occupants on the Hampton property, Manager Greg Guernsey told the neighbors. The plans also met city code requirements for single-family residences on height, density and impervious cover.

So even though the two residences might house as many people as a duplex, it wouldn’t be considered a duplex, Guernsey told the board. And nothing in those plans was objectionable, whether the home was intended for renters or a family of six. Compatibility standards would not apply because it would be single family next to single family.

Planners Luci Gallahan and Guernsey defended the city’s decision. Property owners Michael Little, Michael Rhodes and Michael Said hired agent Mike McHone last week to represent their interests at the hearing.

After a 10-minute presentation from both sides, the Board of Adjustment adjourned into executive session with Assistant City Attorney Martha Terry. Upon their return, the board engaged in an extended discussion during which Commissioner Frank Fuentes encouraged Merjanian and Mattox to make a better case for why the board should side with them.

Guernsey cautioned the board that it would be setting a strong precedent if members stepped out to support the neighborhood on the appeal. Would motive now have to be part of every review? If the Pease Mansion with its eight bedrooms wanted to add an addition, would city staff be forced to ask whether the owners intended a “group residential use?” Would the city have to start policing the number of bedrooms on homes and how they were used?

Commissioners grappled with the code and its intentions, leaving Chair Herman Thun to say he would oppose the appeal on the same grounds he had the last time. The Board of Adjustment needed to make sure plans complied with the intentions of code, not simply justify new zoning and site-development policy.

If the new owners failed to maintain six in each residence, they would be subject to a zoning violation, Guernsey said. That did not give the audience much comfort, given that the city is reactive, rather than proactive, in terms of violations. The city follows up on complaints filed by others, but it doesn’t go out looking for zoning offenses, Guernsey admitted.

Opponents of the proposed residence argued that the houses were de facto residential group housing, but Terry warned that the caption of the code does not control the definition under code. Just because something is called “single-family housing” does not mean that a family has to be living in the house.

Fuentes made a motion to back the neighbors on the appeal, which was seconded by Commissioner Betty Edgemond. Vice Chair Barbara Aybar joined them. But with Thun and Laurie Virkstis opposing the motion, it failed to win the required supermajority. Neighbors have a right to appeal the decision again back to the Board of Adjustment.

©2003 In Fact News, Inc. All rights reserved

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